Citation Nr: 0827809
Decision Date: 08/15/08 Archive Date: 08/22/08
DOCKET NO. 07-09 980A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for a back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. M. Macierowski, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1971 to
November 1971. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from the Department of
Veterans Affairs (VA) Regional Office in Cleveland, Ohio
(RO).
FINDINGS OF FACT
1. The veteran's service medical records show that the
veteran reported experiencing back pain in October 1971, but
do not show evidence of a back injury or diagnosed back
disorder in service.
2. The veteran is currently diagnosed with herniated nucleus
pulposis of T12-L1, and degenerative disc disease and
degenerative joint disease of L5-S1.
3. The medical evidence of record does not relate the
veteran's back disorder to his military service.
CONCLUSION OF LAW
A back disorder was not incurred in, or aggravated by, active
military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West
2002); 38 C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
With respect to the veteran's claim for service connection,
VA has met all statutory and regulatory notice and duty to
assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial
adjudication of the veteran's claim, a letter dated in May
2006 satisfied the duty to notify provisions. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002). Moreover, the veteran was
notified of regulations pertinent to the establishment of an
effective date and of the disability rating by letters dated
in March 2006, and in the notice letter accompanying the May
2008 supplemental statement of the case. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Thus, the purpose behind
the notice requirement has been satisfied because the veteran
has been afforded a meaningful opportunity to participate
effectively in the processing of his claim, to include the
opportunity to present pertinent evidence. Simmons v.
Nicholson, 487 F.3d 892 (Fed. Cir. 2007) and Sanders v.
Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (holding that
although VCAA notice errors are presumed prejudicial,
reversal is not required if VA can demonstrate that the error
did not affect the essential fairness of the adjudication),
cert. granted as Peake v. Sanders, ____ U.S.L.W. ____ (U.S.
Jun. 16, 2008) (No. 07-1209).; Overton v. Nicholson, 20 Vet.
App. 427 (2006).
The veteran's service medical records, VA medical treatment
records, and identified private medical records have been
obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The
veteran was also accorded a VA examination in June 2006.
38 C.F.R. § 3.159(c) (4). There is no indication in the
record that any additional evidence, relevant to the issues
decided herein, is available and not part of the claims file.
See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there
is no indication that any failure on the part of VA to
provide additional notice or assistance reasonably affects
the outcome of the case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 20 Vet. App.
537 (2006); see also Dingess/Hartman, 19 Vet. App. at 473.
Additionally, the Board has thoroughly reviewed all the
evidence in the veteran's claims folder. Although the Board
has an obligation to provide reasons and bases supporting
this decision, there is no need to discuss, in detail, all of
the evidence submitted by the veteran or on his behalf. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claim. The
veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the claimant).
Service connection may be established for a disability
resulting from diseases or injuries which are clearly present
in service or for a disease diagnosed after discharge from
service, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to
establish service connection for the veteran's claimed
disorders, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of inservice incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed inservice disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
In this case, the veteran claims entitlement to service
connection for a back disorder. Specifically, he asserts
that in November 1971, laundry detergent spilled on a flight
of stairs caused him to fall and experience back pain, and
this injury has resulted in his current back disorder.
The veteran's service medical records show no evidence of a
back injury or a diagnosed back disorder. One week into
service, in October 1971, the veteran reported mid- to low
back pain. A November 1971 Individual Sick Slip shows that
the veteran was on limited duty for the last week of his
active service, but does not state that this limited duty was
for a back injury. The veteran was given a medical discharge
from service in November 1971, based on a diagnosed
psychiatric disorder; the Medical Evaluation Board report did
not indicate any chronic physical disorders.
A private medical evaluation dated two weeks after the
veteran's service separation in November 1971 indicated that
the veteran experienced muscle spasms and pain in the right
lumbar spine, right hip, and right leg. X-rays showed only
slight narrowing at L5-S1, and the veteran was diagnosed with
lumbosacral strain with sciatic involvement. Additionally,
in a February 1972 VA Report of Accidental Injury, the
veteran stated that in October 1971, laundry detergent
spilled on a flight of stairs and caused him to fall and
experience back pain. The veteran reiterated these
complaints of back pain during the March 1972 VA examination,
but the physical examination at that time showed no abnormal
clinical findings except for a sight narrowing of the spine
at L5-S1 posteriorly.
There are no records following the March 1972 VA examination
until the June 2006 VA examination. At that time, the
veteran reiterated the history of his claimed inservice
accident. The examiner indicated that although the veteran
claimed the injury and subsequent hospitalization, there was
no objective record of either. Additionally, the examiner
recorded the veteran's report of being injured in two motor
vehicle accidents, in July 2005 and August 2005, resulting in
lower back pain down the left lower extremity to the ankle.
Based on physical examination and radiographic testing, the
examiner diagnosed the veteran with a herniated nucleus
pulposis at T12-L1, and of both degenerative disc disease and
degenerative joint disease at L5-S1. The examiner concluded
that the veteran's current symptomatology was "more likely
related to [the veteran's] recent motor vehicle accidents."
Despite the above, the evidence of record does not show that
the veteran's back disorder is related to service.
Initially, it is noted that the service medical records show
no evidence of a back injury or disorder. To that end, the
veteran is competent to subjectively report an incident he
experienced, and to describe his symptomatology. See, c.f.,
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
However, even taking the veteran's report of his inservice
injury as a confirmed incident, the sole opinion of record
concerning the relationship between the veteran's current
back disorder and his military service concludes that his
current back disorder is more likely related to the 2005
motor vehicle accidents than to the claimed 1971 inservice
injury. There are no other objective medical opinions of
record which contradict this conclusion. The veteran's
assertion that the two are related is not probative, as he
lacks the medical training required to formulate such an
opinion; a layperson without medical training, such as the
veteran, is not qualified to render medical opinions
regarding the etiology of disorders and disabilities. See
Id. at 494-95; see also 38 C.F.R. § 3.159(a)(1).
Moreover, there is lack of documented symptomatology, for
more than 30 years, between the 1972 VA examination and the
June 2006 VA examination. Mense v. Derwinski, 1 Vet. App.
354, 356 (1991) (holding that VA did not err in denying
service connection when the veteran failed to provide
evidence which demonstrated continuity of symptomatology, and
failed to account for the lengthy time period for which there
is no clinical documentation of the claimed condition); see
also cf. Maxson v. Gober , 230 F.3d 1330, 1333 (Fed. Cir.
2000). Accordingly, absent continuity of symptomatology or
an objective medical opinion relating the veteran's current
back disorder to his military service, service connection for
a back disorder is not warranted.
Because the medical evidence of record does not relate the
veteran's back disorder to his military service, the
preponderance of the evidence is against his claim for
service connection. As such, the benefit of the doubt
doctrine is inapplicable, and the claim must be denied. See
38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Service connection for a back disorder is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs